TMI Blog2019 (4) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific directions given by the ld. CIT(A) in his order u/s 263 which were upheld in the case of Subhalaxmi Vanijya Pvt. Ltd. vs. CIT [ 2015 (8) TMI 174 - ITAT KOLKATA] - I.T.A. No. 2456/Kol/2017 - - - Dated:- 20-2-2019 - Sri J. Sudhakar Reddy, Accountant Member And Sri S.S. Viswanethra Ravi, Judicial Member For the Appellant : Shri S.M. Surana, Advocate, appearing For the Respondent : Shri Robin Chowdhury, Addl. CIT, Sr. DR, ORDER PER J. SUDHAKAR REDDY :- This is an appeal is filed by the assessee and is directed against the order of the ld. Commissioner of Income Tax (Appeals) - 12, Kolkata (hereinafter the ld. CIT (A) ), passed u/s 250 of the Income Tax Act, 1961 (the Act ), dated 31/03/2017. 2. The assessee is a company and filed its return of income on 12.03.2013 declaring total income of ₹ 90,440/-. The Assessing Officer passed an order u/s 144 of the Act on 04.03.2015 making an addition of ₹ 1,50,00,000/- u/s 68 of the Act. At Page 2 of its order, the Assessing Officer in his order has held that the share capital received was not verifiable from the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the directions of the ld CIT. In response to this, the ld DR vehemently opposed this plea of the assessee and contended that the assessee company was very well aware of the revisional order passed by the ld CIT and should have brought all evidences before the ld AO to substantiate the identity, genuineness and creditworthiness of share subscribers. The ld AO has noted that the assessee did not co-operate with the assessment proceedings and , therefore, the assessee cannot be given another innings. The ld AO after noticing that none appeared on behalf of the assessee and on behalf of the subscriber companies, concluded that the assessee had not co-operated and , therefore, according to him, the identity and genuineness of the shareholder subscriber companies could not be established beyond doubt and, therefore, he made the addition of ₹ 10,31,00,000/- . We note that the ld CIT invoked the revisional jurisdiction u/s 263 of the Act and found that the assessee company in its Balance Sheet has shown to have infused equity share capital of ₹ 10,31,00,000/- including share premium and since the ld AO had not enquired into the source of the share capital and premium infused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the ld AO, wherein the shareholders had duly responded to notice u/s 133(6) of the Act by confirming the fact of making investments in the assessee company. The shareholders had also duly furnished their income tax assessment particulars. Pursuant to directions of the ld CIT u/s 263 of the Act, the ld AO was mandated to make direct verifications about the genuineness of the transactions and creditworthiness of the shareholders by making necessary specific enquiries as listed out in the revision order u/s 263 of the Act. The ld CIT had specifically directed the ld AO to make enquiries directly from the shareholders and not through the assessee. Hence non-appearance of the assessee before the ld AO and nonproduction of the shareholders of the assessee company before the ld AO, intentionally or unintentionally does not make any relevance here. The ld CIT had directed the ld AO to investigate into multiple layers of the investment in shares made by respective shareholders and identify the ultimate person holding controlling interest including the change in shareholding, directorship etc and then take the entire matter to its logical conclusion to bring out the facts on record. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving sufficient opportunity of being heard to the assessee. Accordingly, the Grounds raised by the assessee are allowed for statistical purposes. (ii) In the case of Bihari Distributors Pvt. Ltd. vs. ITO, Wd-14(1), Kolkata; ITA No.521/Kol/2017 Assessment Year 2009-10 order dated 16.10.2018 held as follows: 4. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the AO has given effect to the Ld. CIT s order passed u/s. 263 of the Act by passing the best judgment assessment on 31.03.2015. However, the main grievance of the assessee is that no proper opportunity was given to the assessee to prove identity, creditworthiness and genuineness of the transaction. For that the Ld. AR drew our attention to page 5 of the assessment order and specifically to para 11 from where we note that the AO has received the records only on 18.03.2015 and he has passed the impugned assessment order on 31.03.2015 i.e. within a period of 12 days wherein he was pleased to saddle the entire share application money as the income of the assessee. The Ld. AR pleads before us that within 12 days the assessment co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. In similar case this Tribunal in ITA No.393/Kol/2016 in M/s. Star Griha (P) Ltd. Vs. ITO for AY 2008-09 dated 15.12.2017 has observed as under:- We also note that the Ld. CIT after looking into the pernicious practice of converting black money into white money has given the guidelines to AO as to how the investigation should be conducted to find out the source. Since similar order of the Ld. CIT passed u/s. 263 of the Act has been upheld by the Tribunal as well as by the Hon ble Calcutta High Court as well as the SLP has been dismissed by the Hon ble Supreme Court, similar order of the Ld. CIT has to be given effect to as directed by the Ld. CIT. We take note that the Ld. CIT with his experience and wisdom has given certain guidelines in the backdrop of black money menace should have been properly enquired into as directed by him. The AO ought to have followed the investigating guidelines and method as directed by him to unearth the facts to determine whether the identity, genuineness and creditworthiness of the share subscribers. We note that the Hon ble Supreme Court (three judges bench) in the case of Tin Box, (supra), has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO in similar cases being upheld up to the level of Apex Court, and taking note of Hon ble Delhi High Court s order in Jansampark Advertising Marketing Pvt. Ltd. (supra), and the ld DR accepted that assessee did not get proper opportunity before the AO during reassessment proceedings, we set aside the order of the Ld. CIT(A) and remand the matter back to the file of AO for de novo assessment and to decide the matter in accordance to law after giving opportunity of being heard to the assessee. (iii) In the case of M/s. AIC Sponge Power Pvt. Ltd. vs. ITO, Wd-2(2), Kolkata; ITA No.995/Kol/2017 Assessment Year 2012-13 order dated 15.06.2018 held as follows: 4. We have heard the arguments of both the sides and also perused the relevant material available on record. In support of the preliminary issue raised by the assessee in this appeal challenging the impugned order passed by the Ld. CIT(A) ex-parte, the learned counsel for the assessee has submitted that the appeal of the assessee was fixed for hearing by the Ld. CIT(A) on three dates i.e. 09.11.2016, 14.12.2016 and 02.02.2017. He has submitted that the assessee on all these three occasion ..... 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